Planning for Life

There is just one exception to the American rule that you get to choose who gets your property after you die. As long as you're competent, you can give it to anyone, the postman, your babysitter from when you were a child, or the person who picked you up hitchhiking in the rain.

The one exception is protections for your surviving spouse. In Massachusetts, this is found at M.G.L. Ch. 191, Sec. 15. This is an odd or anachronistic law in that it creates a big distinction in the rights of the surviving spouse depending on whether the decedent's estate is worth more or less than $75,000. If the decedent has surviving children or grandchildren and his estate is worth less than that amount, the surviving spouse gets a third. If it's worth more than $75,000, the surviving spouse gets $25,000 plus

only the income during his or her life of [a third of the estate above $25,000], the personal property to be held in trust and the real property vested in him or her for life.

Income Only or Ownership

The question recently decided in Susan Ciani v. Brenda L. MacGrath, et al. (SJC-12531, January 8, 2019), is the meaning of this language with respect to real estate, whether it gives the surviving spouse an ownership interest or simply the right to income.

In this case, Raymond Ciani died in 2015, leaving his entire estate to his four children and nothing to his wife, Susan. She invoked her spousal rights by "electing" against the will and sought a court order that the real estate in her husband's estate be sold so that she could get her one-third interest. The children opposed her petition arguing that Susan does not have a property interest that would give her the right to "partition" the property, just a right to one third of the income the property produces.

Statutory Construction

In seeking to determine who correctly interprets the statute, the Supreme Judicial Court applies the rule of statutory construction that seeks to give meaning to each word of the statute and does not leave some words with no meaning. The Ciani children argue that the language in the statute giving the surviving spouse a right to "only the income" of her one-third share of the estate applies to both persona property (stocks and bonds) and real property (real estate). The SJC asks then what does word "vested" mean; how can the clause be read so that "vested" is not mere "surplusage?" It concludes as follows:

[T]he first clause ("only the income during his or her life") limits the surviving spouse to an interest in the "income only," and the second clause ("the personal property to be held in trust and the real property vested in him or her for life") describes how that limitation is to be achieved for each type of property -- the personal property is to be held in trust and the real property is to be vested in the surviving spouse for life.

Vested Equals Ownership

The use of the term "vested" implies that the legislature intended for the surviving spouse to have an ownership in the real estate. Since the ownership is limited to her life, the form of ownership is a life estate. As such, Susan can petition for partition forcing the sale of the real estate. Once the property is sold, she can either receive her share outright or it can be placed in trust with the investment income distributed to her. To determine Susan's share if she is to receive an outright distribution, the probate court may use actuarial tables that value her share based on her age, life expectancy and current interest rates.